U.S. District Judge Benson Everett Legg has struck down Maryland’s handgun law to the extent that it requires residents show a “good and substantial reason” to get a handgun permit. While he is being criticized for the opinion, I believe that Judge Legg is on sound legal ground in light of the Supreme Courts decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). The case does enter into largely unmapped territory on what standard of scrutiny to apply in such cases — a matter that could prove quite important in future cases.
Plaintiff Raymond Woollard obtained a handgun permit in 2002 after an intruder broke into his home. He fought the intruder and cited that as the basis for the permit. However, in 2009, he was denied the permit as unsupported by good cause and any “threats occurring beyond his residence.”
Here is the law in question in pertinent part:
§ 5-306. Qualifications for permit
(a) In general. — Subject to subsection (b) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds:
(1) is an adult;
(2) (i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or
(ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c);
(3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance;
(4) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction; and
(5) based on an investigation:
(i) has not exhibited a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger to the person or to another; and
(ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.
Legg found that “[a] citizen may not be required to offer a `good and substantial reason’ why he should be permitted to exercise his rights,” he wrote. “The right’s existence is all the reason he needs.”
What is interesting is that the Heller decision did not specify the level of scrutiny that would be afforded in the review of such claims. In United States v. Chester, 628 F.3d 673 (4th Cir. 2010), the Fourth Circuit drew a distinction on the possession of a gun inside and outside a home in determining the level of scrutiny: “As we observe that any law regulating the content of speech is subject to strict scrutiny, we assume that any law that would burden the fundamental, core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” The court applied the intermediate level of scrutiny outside of the home.
Legg applied the intermediate standard:
As stated, Maryland’s permitting scheme, insofar as it requires a good and substantial reason for a law-abiding citizen to carry a firearm outside his home, is subject to intermediate scrutiny. In order to prevail, the State must demonstrate that the challenged regulation is reasonably adapted to a substantial governmental interest. Under this standard, the degree of fit between the regulation and ―the well-established goal of promoting public safety need not be perfect; it must only be substantial. Heller v. Dist. of Columbia, 698 F. Supp. 2d 179, 191 (D.D.C. 2010).
Legg concludes that the law is little more than a “rationing system.” He adds:
It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate good reason beyond a general desire for self-defense. In support of this limitation, Defendants list numerous reasons why handguns pose a threat to public safety in general and why curbing their proliferation is desirable. For example, they argue that an assailant may wrest a handgun away from its owner, and cite evidence that this possibility imperils even trained police officers. See Defs.’ Mot. Summ. J. 15, Docket No. 26. They note that when a police officer is engaged in a confrontation with a criminal, the presence of an armed civilian can divert the officer’s attention.Id. at 16. In addition, Defendants urge that while most permit holders are law-abiding, there is no guarantee that they will remain so. They cite studies purporting to show that the majority of murderers have no previous felony conviction that would have prevented them from obtaining a permit. Id. at 35. Thus, they argue, a permitting scheme that merely denies permits to convicted felons is inadequate.
These arguments prove too much. While each possibility presents an unquestionable threat to public safety, the challenged regulation does no more to combat them than would a law indiscriminately limiting the issuance of a permit to every tenth applicant. The solution, then, is not tailored to the problem it is intended to solve. Maryland’s good and substantial reason requirement will not prevent those who meet it from having their guns taken from them, or from accidentally shooting themselves or others, or from suddenly turning to a life of crime. Indeed, issuing permits specifically to those applicants who can demonstrate an increased likelihood that they may need a firearm would seem a strange way to allay Defendants’ fear that when handguns are in the possession of potential victims of crime, their decision to use them in a public setting may actually increase the risk of serious injury or death to themselves or others. Id. at 15. If anything, the Maryland regulation puts firearms in the hands of those most likely to use them in a violent situation by limiting the issuance of permits to groups of individuals who are at greater risk than others of being the victims of crime. Id. at 40.
There are obviously good-faith reasons to oppose the interpretations in cases like Heller, though I have reluctantly agreed with its foundational interpretation of the right. Here is a prior column. However, this is now controlling precedent for lower courts and Legg followed that precedent. It will, however, be interesting if higher courts agree on the standard of review in the expected appeal of this decision.
Here is Judge Legg’s bio:
District Judge Benson Everett Legg was born in 1947 in Baltimore, Maryland. Judge Legg attended Princeton University and graduated magna cum laude in 1970, with a B.A. degree in English literature. He pursued his law degree at the University of Virginia School of Law, achieving his J.D. in 1973. While at the University of Virginia School of Law, Judge Legg served on the editorial board of the Virginia Law Review from 1971-73, and he was a member of the Order of Coif. During the summer of 1971, Judge Legg worked at the Baltimore law firm of Venable, Baetjer and Howard. After his second year of law school, he worked as a summer associate at Goodwin, Procter and Hoar in Boston.
Following law school, Judge Legg served as law clerk to the Honorable Frank A. Kaufman of the United States District Court for the District of Maryland, from 1973-74. In 1975, Judge Legg returned to Venable, Baetjer and Howard as an associate, becoming partner in 1982. On May 15, 1991, Judge Legg was nominated by President Bush to a vacant seat on the United States District Court for the District of Maryland. Confirmed by the Senate on September 12, 1991, Judge Legg was commissioned on September 16, 1991. Judge Legg served as chief judge from Jan. 6, 2003 until Jan. 4, 2010.
Admitted to the Maryland Bar in 1973, Judge Legg was active in bar association work. He served on the business torts litigation committee of the American Bar Association’s Litigation Section.He was chair of the economics of litigation committee of the Maryland State Bar Association. In addition, he served the Baltimore City Bar Association as vice-chair and chair of the continuing legal education committee and was on the executive council from 1987-88.
A faculty member of the Maryland Institute for the Continuing Professional Education of Lawyers (MICPEL), Judge Legg was also an instructor at the Trial Advocacy Institute at the University of Virginia. He authored a Virginia Law Review article, entitled “Reliance Electric and 16(b) Litigation” in 1972, co-authored the Maryland Appellate Practice, Rules and Commentary with Forms in 1988, and contributed to the ABA’s Model Jury Instructions for Business Tort Litigation (1988).
Judge Legg has been a member of many professional associations, such as the Princeton University Secondary Schools Committee; Advisory Board of the National Aquarium in Baltimore(1987 to 2003); Trustee and Member of the executive and financial committees of the Baltimore Zoological Society (1990 to 2004); Member of the executive committee of the Gilman School Alumni Association; and Serjeants Inn. He also served on the Board of Directors of the Central Maryland Chapter of the American Red Cross, from 1979 to 1988.